Academics like to measure things.
However, just because something can be measured, doesn’t necessarily mean that it should be measured or that the measurement has any meaningful significance.
There are lots of things in the Foreign Corrupt Practices Act space that can and should be measured.
However, this recent paper titled “The Political Economy of Anti-Bribery Enforcement” once again demonstrates the silliness of measuring certain things.
In 2010, I published an article titled “The Facade of FCPA Enforcement.”
This article discussed various pillars that contribute to the facade of FCPA enforcement and highlighted that the FCPA, during its decade of resurgence, was being enforced like no other law. This article did not argue, or even suggest, that every FCPA enforcement action is unwarranted or that no company or individual has never violated the FCPA. Rather, the article demonstrated that a significant majority of FCPA enforcement actions are a facade” including those that allege clear instances of corporate bribery” yet are resolved without FCPA anti-bribery charges.
According to this site, it is one of the most read articles specifically about the Foreign Corrupt Practices Act.
A decade later, I happy to see that others still notice the article and have continued to expose the facade of FCPA enforcement.
For instance, Joshua Ray (a London-based Partner at Rahman Ravelli Solicitors who leads the Firm’s U.S.-facing business crime practice group) recently published this article titled “The Continuing Facade of FCPA Enforcement: A Critical Look at the Telia DPA.” Of note, Ray serves as defense counsel for Bekhzod Akhmedov in connection with criminal charges filed against him in 2019 related to the Telia FCPA enforcement action (see here for the prior post).
Set forth below is a summary of Ray’s article.
There are some things written about the Foreign Corrupt Practices Act that cause me to scratch my head. Whether it is false information, lack of historical context, or just plain lack of FCPA experience of the author, certain FCPA “scholarship” is lacking.
This article titled “Foreign Corrupt Practices Act: Path to Reduce Environmental Damage” which recently appeared in the American Journal of Management Science and Engineering caused me to scratch my head for a different reason: I don’t even understand what it is says.
Can someone please translate.
The Foreign Corrupt Practices Act is a top priority federal statute of significant importance to all businesses and individuals engaged in international commerce. Yet, despite its significance, few FCPA enforcement actions are subjected to judicial scrutiny and most federal court judges go their entire career without an FCPA case being placed on their docket.
However, Shira Scheindlin (who recently retired from being a judge on the U.S. District Court for the Southern District of New York) was an exception and during her time on the bench she refereed more disputed FCPA issues than any other federal judge in the FCPA’s 40+ year history.
My article “The Foreign Corrupt Practice Act Jurisprudence of Shira Scheindlin” recently published in the Syracuse Law Review (click here to download) analyzes the legal decisions of the FCPA’s most prominent jurist.
False, lack of context, stay in your lane, and for the reading stack. It’s all here in the Friday roundup.
False
At times it seems like we live in a post-factual world. If a fact gets in the way of a narrative, you just ignore the fact, pretend it doesn’t exist, and hope nobody calls you out on it.
